Florida Supreme Court Denies Rehearing of its Opinion in Custer Medical Center v. UAIC

On May 18, 2011, the Supreme Court of Florida entered an order denying United Automobile Insurance Company’s (“UAIC”) motion for rehearing and request for oral argument in Custer Medical Center v. United Automobile Insurance Company, 2010 WL 4340809 (Fla. Nov. 4, 2010) (Case No. Sc08-2036). The Court contemporaneously entered additional orders relating to ancillary motions and amici briefs. One of the Court’s orders struck all amici briefs filed in the case, including briefs filed by numerous industry trade associations, insurance companies, and even the NCIB. Other orders denied motions filed in the case which were rendered moot by the court’s denial of UAIC’s motion for rehearing.  

The Custer opinion, issued on November 4, 2010, contained language ancillary to the case’s holding, known as dicta, that frustrates the purpose of the anti-fraud provisions of the personal injury protection (“PIP”) statutes. The dicta opined that:

• PIP policy provisions that do not directly mirror the PIP statutes may be unenforceable.

• Unless otherwise provided by statute, a PIP carrier may not deny payment of medical expenses incurred and submitted by the insured prior to the date of a scheduled independent medical exam (“IME”), even if an insured does not attend the IME.

• Unless otherwise provided by statute, a PIP carrier may only deny payment of an insured’s medical expenses incurred and submitted after the date of the IME if the carrier can affirmatively prove the unreasonableness of an insured’s failure to attend an IME. Thus, the burden of proving the unreasonableness of the insured’s action/non-action rests with the insurer.

• Denial of benefits for an insured’s failure to submit to an examination under oath without counsel (“EUO”) may no longer be permissible, as the Court points out that EUOs are not expressly permitted under the PIP statutes.

Denial of UAIC’s motion for rehearing cements the Custer decision into our lawbooks, creating uncertainty for PIP insurers in Florida. The full effects of the Supreme Court’s decision today are yet to be determined, but the use of IMEs and EUOs may be significantly impaired due to litigation contesting the use of these fraud fighting tools.

Should you have any questions or comments, please contact Colodny Fass.